Working from Home: Legal Issues for Employers …..

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Working from home, telecommuting, flexible hours, – whatever you call it, it is part of the Gen Y paradigm of focusing on work product rather than work process. In an information economy where so many workers are producing electronic written and graphic content rather than a physical product, many employees are pushing to work where they are the most comfortable, happy, and hopefully, the most productive – at home.

Having said that, while there is a general perception that the Gen-Y workforce will continue to push for change in flexibility, the push to telecommute may equally come from your older workforce who have settled into the workplace hierarchy, already have a good relationship with the boss and no longer need face-time, have the space in their larger suburban home, and have a busy schedule with family and community outside of work.

For example, in a study by Regis called “Meeting the Future of Work”, the author suggests that despite their tech savvy, mobile and socially connected instincts, many Gen-Yers still recognize a need to be in the office, near the work flow and near the boss:

We found that younger staff expressed 15% to 20% less desire than their older colleagues to choose their time and place to work. In fact, they actively seek out every opportunity to be in the office in the closest proximity to their boss.We found a direct, almost linear correlation between age and appetite for flexible working – from over 70% enthusiasm among older staff declining to under 40% with Generation Y staff.

Perhaps, as well, your typical 25 year old employee’s 500 square-foot Toronto condo doesn’t quite live up to the quest for freedom and space they envisioned. In other words, the interest in telecommuting will likely cut across all generations in the workforce.

Whether the push is from your Silocon-wannabes, or the sandwhich-generation juggling small kids and elderly parents, here are some of the key legal issues employers need to think about when offering telecommuting to employees:

1. Policies:

As with most areas of the employment law universe, the legal backdrop should be a policy that sets out employer expectations around issues such as hours of work per day or week, preserving confidential information, home office insurance and liability issues, ownership of equipment and content, reporting structures, how to monitor work product and deadlines, any obligations to attend on-site meetings, and reserving a general right to pull the employee back into the office if necessary.

2. Discrimination:

Determine up front whether the right to telecommute will be offered to all employees. If you are offering the choice to work from home only to your high performers or the ones you “trust” the most, you may open yourself up to complaints of favourtism or, in some cases, discrimination.

If you do deal with telecommuting requests on an ad hoc or project basis, ensure your workplace policy sets out objective criteria for allowing employees to work from home. Without an objective criteria, refusals to allow telecommuting can amount to a discrimination claim, as was the case in the Human Rights Tribunal of Ontario case last month of Devaney v ZRV Holdings (2012 HRTO 1590).

In that case, the applicant was an architect who had extensive elder care responsibilities at home. Denied the request to work from home and ultimately fired for failing to work in the office (his work product was good and his main client ultimately hired him directly), the tribunal ordered the employer to pay the employee $15,000 for discrimination on the basis of family status.

3. Constructive Dismissal Issues:

Most employees would view working from home as a positive term and condition of their employment. But what happens if corporate realities change and you want to bring employees back into the office? What if an employee’s productivity has become outweighed by their knowledge of day-time TV schedules? Without reserving the right in the workplace policy or employment contract to dictate work location, you may open yourself up to a constructive dismissal claim for introducing an adverse term (i.e. requiring the employee to return to a work office) into the employment relationship.

The ongoing shift in how information and work product is created, stored, gathered, processed and packaged for clients will continue to evolve the workplace paradigm, which will inevitably include workplace location. For those employees who see themselves as more of a free agent to an employer rather than some sort of employee serf, flexibility around work location will be increasingly be viewed as more of an entitlement than a perk. Managing these job expectations will continue to be an interesting challenge for traditional workplace environments

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